Walker: Should Gardner make a deal to preserve her office's independence?

Missouri law allows the St. Louis circuit attorney to request a special prosecutor to assist in the prosecution of local cases. And such an arrangement could help her stave off hostile forces in Jefferson City. Assuming the circuit attorney and the governor could work together, for example, a special prosecutor (or several) could take some of the burden off the city for clearing cases, freeing up resources for other projects, like exoneration.

More than 3,000 cases remain to be prosecuted in the city, a number that mirrors similar backlogs in other urban areas around the country, many the result of closed courts during the pandemic.

New York Gov. Kathy Hochul has declared the problem of case backlog in her state an “emergency,” prompting her to direct additional resources to prosecutors. California Gov. Gavin Newsom has done the same, also directing resources to address backlogs in Los Angeles and San Francisco. Both are Democrats.

The Republican Legislature’s willingness in Missouri to send additional prosecutors to St. Louis could be viewed similarly, as a welcome infusion of state resources to fix a daunting local challenge. Without adequate prosecution, victims are left waiting for justice and defendants languish in limbo, waiting for exoneration.

But cooperation is key. If the circuit attorney works with the governor, she might be able to retain control of the special prosecutor’s office, perhaps even housing it in her division. Gardner might also be able to convince the governor to veto the impending bill in the Legislature. After all, the state might not want the inevitable bad press that would ensue if a majority white Legislature demotes the city’s first African American circuit attorney.

But a deal needs to be made soon. Otherwise, the Legislature might easily install state prosecutors in a separate state office. And – to really “fix” things – the Legislature could also commandeer the police department. Neither move would be new. The state controlled the police department for decades before a vote returned it to local control in 2012.

And the state used to also appoint circuit attorneys. In fact, most prosecutors in America were appointed by the state during the early days of the republic, and this trend continued into the 19th century. The first state to endorse elected prosecutors was Mississippi in 1832, a move that coincided with the rise of Jacksonian democracy. Missouri came later, in 1851, only nine years before the Civil War.

And local control proved short lived.

Beginning during Reconstruction, for example, the federal government began to extend its tendrils into the states, in part by assigning federal prosecutors to the newly created Department of Justice. That department began prosecuting Klansmen in the South in the 1870s and continued to grow through the 20th century.

Today, the federal government boasts its own parallel criminal justice system, with its own prosecutors, police, and even prisons. Three St. Louis city aldermen fell victim to that system last December, and anyone engaged in narcotics violations, gun crimes or carjackings can be apprehended, prosecuted, and convicted by federal authorities, independent of local control.

Put another way, we already have special prosecutors in the city, and have had them for years. What’s a few more?

Imagine, for example, that the Missouri Legislature enacted a rule requiring all state crimes be prosecuted by state prosecutors in St. Louis and Kansas City. Such a law could be passed in the name of crime control and would violate no constitutional provisions. In fact, it would simply replicate what has already happened at the federal level. If federal prosecutors manage federal crimes, why not have state prosecutors do the same for state crimes? Local prosecutors could then be relegated to prosecuting violations of local municipal ordinances, the laws that the people of St. Louis enact.

That would be a brave new world, to be sure. And maybe not a good one. After all, how many layers of prosecutors do we need? Perhaps the time has come to make a deal.

Anders Walker is the Lillie Myers professor of law at St. Louis University School of Law.